Untitled Texas Attorney General Opinion

ATTORNEYGENERALOFTEXAS
GREG ABBOTT

November 1,2004

The Honorable Helen Giddings Opinion No. GA-0267
Chair, Committee on Business and Industry
Texas House of Representatives Re: Whether, under section 54.012(S) of the
Post Office Box 2910 Local Government Code, a municipality may
Austin, Texas 78768-2910 enact an ordinance prescribing civil penalties for
matters that do not relate to the substantive
provisions of section 54.012 (RQ-0220-GA)

Dear Representative Giddings:

You ask whether, under section 54.012(S) of the Local Government Code, a municipality
may enact an ordinance prescribing civil penalties for matters that do not relate to the substantive
provisions of section 54.012.’

Chapter 54 ofthe Local Government Code, entitled “Enforcement ofMunicipal Ordinances,”
is divided into three subchapters. Subchapter A describes the general enforcement authority ofTexas
municipalities and imposes a general limit of $500 for a “tine or penalty for the violation of a rule,
ordinance, or police regulation.” TEX. Lot. GOV’T CODE ANN. 5 54.001(a)-@) (Vernon 1999).
Violations of rules, ordinances, or regulations governing “fire safety, zoning, or public health and
sanitation,” however, may be punished by a tine or penalty not to exceed $2,000. Id. 5 54.001(b).

Subchapter B of chapter 54 is denominated “Municipal Health and Safety Ordinances.”
Section 54.012 provides:

A municipality may bring a civil action for the enforcement of an
ordinance:

(1) for the preservation of public safety, relating to the
materials or methods used to construct a building or other structure
or improvement, including the foundation, structural elements,
electrical wiring or apparatus, plumbing and fixtures, entrances, or
exits;

‘SeeLetterfrom HonorableHelen Giddings,Chair,Committeeon Businessand Indushy,Texas Houseof
Representatives, to HonorableGregAbbott,TexasAttorneyGeneral(May7,2004)(ontile withthe OpinionCommittee,
also available nf http://www.oag.state.tx.us)
[hereinafkrRequestLetter].
The Honorable Helen Giddings - Page 2 (GA-0267)

(2) relating to the preservation of public health or to the tire
safety of a building or other structure or improvement, including
provisions relating to materials, types of construction or design,
interior configuration, illumination, warning devices, sprinklers or
other fire suppression devices, availability of water supply for
extinguishing tires, or location, design, or width ofentrances or exits;

(3) for zoning that provides for the use of land or classifies
a parcel of land according to the municipality’s district classification
scheme;

(4) establishing criteria for land subdivision or construction
of buildings, including provisions relating to street width and design,
lot size, building width or elevation, setback requirements, or utility
service specifications or requirements;

(5) implementing civil penalties under this subchapter for
conduct classified by statute as a class C misdemeanor;

(6) relating to dangerously damaged or deteriorated
structures or improvements;

(7) relating to conditions caused by accumulations ofrefuse,
vegetation, or other matter that creates breeding and living places for
insects and rodents:

(8) relating to the interior configuration, design, illumination,
or visibility ofbusiness premises exhibiting for viewing by customers
while on the premises live or mechanically or electronically displayed
entertainment intended to provide sexual stimulation or sexual
gratification; or

(9) relating to point source effluent limitations or the
discharge of a pollutant, other than from a non-point source, into a
sewer system, including a sanitary or storm water sewer system,
owned or controlled by the municipality.

Id. 5 54.012 (emphasis added). You inquire as to whether item five in section 54.012 is a “stand
alone” provision authorizing the imposition of civil penalties for any class C misdemeanor, or
whether authority for a civil penalty under chapter 54 is restricted to the specific subject matter listed
in items one through four and items six through nine of section 54.012.2

%e predecessorstatuteof section54.012wasadoptedfnst in 1985.SeeActof May9,1985,69thLeg.,RX,
ch. 178, 1985Tex. Gen. Laws 737, 737-79. Only the first six items in the present section 54.012, with minor
(continued...)
The Honorable Helen Giddings - Page 3 (GA-0267)

We note initially that the provision in question is limited to the implementation of “civil
penalties under this subchapter.” As the Texas Supreme Court has declared, “it is cardinal law in
Texas that a court construes a statute, ‘first, by looking to the plain and common meaning of the
statute’s words.’ If the meaning of the statutory language is unambiguous, we adopt, with few
exceptions, the interpretation supported by the plain meaning of the provision’s words and terms.
Further, if a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to
create ambiguity.” Fitzgeraldv. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,865-66 (Tex.
1999). The phrase “under this subchapter” is clear and unambiguous. Thus, we need look only to
the provisions of subchapter B for the correct explication of item five of section 54.012.

As we have noted, subchapter B is denominated “Municipal Health and Safety Ordinances.”
The individual sections of subchapter B all relate to health and safety matters. Not only do items one
through four and six through nine of section 54.012 refer exclusively to health and safety matters,
other provisions within subchapter B do likewise. Section 54.015, for example, requires that a
municipality in a civil action plead “the identification of the real property involved in the violation,”
as well as “the relationship of the defendant to the real property or activity involved in the violation.”
TEX. Lot. GOV’T CODEANN. 5 54.015(a)(1)-(2) (V emon 1999). Section 54.016 requires that a
prayer for injunctive relief demonstrate “substantial danger of injury or an adverse health impact to
any person or to the property of any person other than the defendant.” Id. 5 54.016(a). The
injunction may obtain only “against the owner or owner’s representative with control over the
premises.” Id. Finally, section 54.017 authorizes a civil penalty “against the owner or the owner’s
representative with control over the premises.” Id. 5 54.017(a).

When section 54.012 is read in the context of subchapter B of chapter 54 of the Local
Government Code, it becomes apparent that the “civil penalty” authorized by item five of section
54.012 is limited to matters that relate to “municipal health and safety” that are encompassed
within subchapter B. Item five specifically refers to implementation of “civil penalties under this
subchapter.” Id. 5 54.012(5) (emphasis added).

You also ask whether, if a municipality has enacted such an ordinance, it may bring a civil
action “to enforce [the ordinance] which provides for civil penalties if the ordinance enacts the civil
penalty provision pursuant to sections 54.012 (5) and 54.017 ofthe Texas Local Government Code.”
Request Letter, supra note 1. Our answer here is simply a corollary to our answer to your first
question: any such civil action must be encompassed within the ambit of subchapter B.

‘(-continued)
modifications,wereenactedby that legislation.Furthermore,the statutewasthen limitedto home-rulecities. See id.
$ 1, 1985Tex.Gen.Lawsat 738. Onlyin 1991wasformersection54.011,whichlimitedthe effectof section54.012
to home-rulecities,repealed.SeeAct ofMay21, 1991,72dLeg.,RX, ch. 753,$3, 1991Tex.Gen.Laws2646,2646-
47. Significantly,however,thebill analysisofthe original1985legislationcontainedthe followingstatement:“Current
lawallowsvariouspenalties,generallyan assessmentof a ClassC misdemeanor tine, forviolationofcity ordinancesbut
doesnot allowhome-rulecitiesto bringcivil actionsfor violations ofspecific health and safety ordinances.” HOUSE
COMM. ONURBANAFFAIRS, BILLANALYSIS, Tex.H.B.783,69thLeg.,R.S.(1985)(emphasisadded).Thus,the history
of the originallegislationenactingsection54.012seemsto indicatean intentto limitthe scopeof itemfive.
The Honorable Helen Giddings - Page 4 (GA-0267)

SUMMARY

An ordinance enacted under section 54.012(5) of the Local
Government Code must be statutorily classified as a class C
misdemeanor and must, in addition, be encompassed within the
subject matter of subchapter B.

Yours very truly,

neral of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee